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Backgrounder - Family Homes on Reserves and Matrimonial Interests or Rights Act

"It's an issue the government has tried to solve through legislation since 2008. Three separate bills were introduced, but died after Parliament was either prorogued or dissolved, until Bill S-2 was introduced in the Senate in 2011. It was passed into law on June 19, 2013."

For most Canadian individuals undergoing a breakdown of their marriage or common-law relationship, or on the death of a spouse or common-law partner, there is legal protection to ensure that the matrimonial real property assets are distributed equitably. Such was not the case for couples living on reserves governed by the Indian Act. For them, relationship breakdown or the death of a spouse or common-law partner has too often meant insecurity, financial difficulties or homelessness.

The reason: the Indian Act does not address the issue of matrimonial real property rights and as a result of the Supreme Court of Canada decision Derricksonv.Derrickson, elements of provincial/territorial laws relating to this issue cannot be applied on reserves. The result was a legislative gap was created that affected everyone living on reserves, particularly women and children.

The Family Homes on Reserves and Matrimonial Interests or Rights Act ensures that people living on reserves have similar protections and rights as other Canadians.

This Act was developed following a comprehensive consultation process which included collaboration with the Native Women’s Association of Canada and the Assembly of First Nations. The consultation process was overseen by a Ministerial Representative, Wendy Grant-John, who recommended a legislative solution.

After undertaking nationwide consultations and hearing from First Nation members, leaders, regional and national organizations, as well as the provinces and territories, the Ministerial Representative facilitated a consensus-building process. Some shared principles emerged as priorities, and formed the basis of the legislation. These included agreement on the urgent need to remedy this situation, the need to balance individual rights and the collective rights of First Nation communities, and the ability for First Nations to develop their own matrimonial real property laws.

Over the summer and early fall of 2007, the federal government shared a draft legislative proposal regarding on-reserve matrimonial real property and sought feedback from the Assembly of First Nations, the Native Women’s Association of Canada, the Ministerial Representative, the provinces and territories, and the First Nations Lands Advisory Board. All of those involved in the process were given opportunities to share their views and concerns. Their input resulted in significant improvements that were incorporated in this Act.

As a result, the legislation balances individual and collective rights, and includes a mechanism for First Nations to enact community-specific matrimonial real property laws, as well as substantive provisional federal rules for matrimonial real property protections and rights on reserves to be applied in the absence of a First Nation's own law.

The Family Homes on Reserves and Matrimonial Interests or Rights Act is the result of collaborative development over the past few years:

The on-reserve matrimonial real property legislation was first introduced in the House of Commons in March of 2008 as Bill C-47, and was referred to a parliamentary committee for review but died on the Order Paper as a result of the dissolution of Parliament.

In February 2009 the same bill was re-introduced to Parliament as Bill C-8. Bill C-8 was awaiting continuation of second reading debate in the House of Commons when it died on the Order Paper when Parliament was prorogued in December 2009.

In March 2010, the bill was once again introduced, this time in the Senate as Bill S-4. After second reading in the Senate the bill was referred to the Standing Senate Committee on Human Rights, which heard from over 30 witnesses. The Committee adopted 12 amendments aimed at strengthening the bill. On July 6, 2010, the bill was adopted as amended by the Senate. In September 2010, Bill S-4 received first reading in the House of Commons. However, on March 26, 2011, the bill died on the Order Paper due to the dissolution of Parliament.

In September 2011, the bill was introduced in the Senate as Bill S-2. Bill S-2 built on the previous version but included additional changes to address concerns expressed by First Nations and other stakeholders. The changes sought to further support First Nations in developing their own laws through:

the elimination of the provisions related to the verification process, including the role of the verification officer;

a lower ratification threshold for the approval of First Nation matrimonial real property laws to a single majority with a set participation rate of at least 25 percent of the eligible voters; and

a 12-month transition period before the provisional federal rules come into force.

The Standing Senate Committee on Human Rights subsequently adopted two amendments respecting emergency protection orders. These amendments removed the limit on the duration of an emergency protection order upon a rehearing or when it is being varied or extended. The Senate passed Bill S-2, as amended, on December 1, 2011, and it received first reading in the House of Commons on December 8, 2011.

Bill S-2 was debated at second reading in the House of Commons November 1 and 22, 2012, respectively. On April 17, 2013, the bill was passed at second reading and referred to the Standing Committee on the Status of Women.

From April 23, 2013 to May 21, 2013, Bill S-2 was studied by the Standing Committee on the Status of Women, which heard from more than 35 witnesses, and later passed by the House of Commons on June 11, 2013. On June 19, 2013, the Family Homes on Reserves and Matrimonial Interests or Rights Act received Royal Assent.

First Nations named on the Schedule to the First Nations Land Management Act, that do not have their land code established under that Act by December 16, 2014, will have three years to enact their own matrimonial real property laws before the provisional federal rules will apply to their First Nation.

The Governor in Council determined December 16, 2013, as the date for when the First Nation law-making part of the Act came into force. First Nations can now establish their own matrimonial real property laws under the Act.

On December 16, 2014 (twelve months from the date the First Nation law-making provisions in the Act came into force), the provisional federal rules will apply, with some exceptions, to First Nations who have not enacted their own matrimonial real property laws under the Act.

Twelve months after the First Nation law-making mechanism in the Act came into force, the provisional federal rules provided in the Act now apply to First Nations who have not enacted their own matrimonial real property laws under this legislation – with the exception of select First Nations under the First Nations Land Management Act or under comprehensive self-government agreements with land management. The twelve-month transition period gave First Nations time to develop and approve their own laws, if they chose, before the application of the federal rules apply. First Nations will still be able to develop and enact their own matrimonial real property laws at any time after the federal rules come into force.

Now in force, the federal rules fill the legislative gap on reserves where there are no First Nation laws in place and will apply until First Nations enact their own community-specific laws on matrimonial real property under the Act or other federal legislation.